A Third-Way Legal Framework For Addressing The Comcast Dilemma

When the D.C. Circuit issued its opinion in the Comcast/BitTorrent case, it was clear the decision could affect a significant number of important recommendations in the National Broadband Plan, the Commission’s Open Internet proceeding, and other policy initiatives related to broadband. In light of the uncertainty created by the decision, the Chairman asked me to investigate all of the options available to the Commission. Other FCC staff and I have developed a proposal that we believe resolves the doubt created by the D.C. Circuit’s opinion while providing a firm legal basis for the Commission’s limited, but vital role with respect to broadband. Whether, all things considered, the legal response to Comcast sketched out in our proposal is the best one for the Commission to adopt would be for the five FCC Commissioners to answer after public comment and private study. In my judgment, it’s a question worth asking.